2011-NOV-29: Reactions to decision by Justice Wiggins to allow lawsuit to proceed:

As described in previous essays on this topic, the plaintiffs in the lawsuit "New Yorkers for Constitutional Freedoms et al. v. New York State Senate et al." claimed that the law should be declared null and void because proper proceedings regarding legislature meetings were not followed. New Yorkers for Constitutional Freedoms (NYCF) is a conservative Christian group that is the most active organization opposing equal rights for the LGBT community.

Acting State Supreme Court Justice Robert Wiggins rejected all of the complaints by the plaintiffs, except for one. He determined that, during the rush to pass the law before the end of the legislative session, the New York Senate may have violated the state's open meeting law.

On 2011-JUN-24, as the vote on the Marriage Equality Act approached, a meeting was held in the Governor's mansion in Albany. It was attended by 32 Republicans; Governor Andrew Cuomo (D);, New York City Mayor Michael Bloomberg, a registered independent; and New York City speaker Christiane Quinn, a registered Democrat. Although closed meetings involving members of a single party are legal, meetings involving people of other parties are required by law to be open to the public. 1

He ruled that the lawsuit filed by New Yorkers For Constitutional Freedoms will proceed. It attempts to declare the same-sex marriage legislation null and void, and to forcibly divorce all of the same-sex couples who had been married in the state.

Reactions to Justice Wiggins' ruling:

Capitol Confidential reported:

"The four-page decision includes some tough language for the way things get done at the Capitol, including what the judge labels as 'disingenuous' justifications from Gov. Andrew Cuomo for issuing a message of necessity that rushed the legislation onto the Senate floor on the final evening of session. In the case of same-sex marriage, the message stated that speed was required as long as 50,000 New Yorkers were being denied their right to marry -- a set of circumstances that had pertained for the previous 200-odd years without prompting emergency action." 1

Judge Wiggins wrote, in part:

"Logically and clearly this cite by the Governor is disingenuous. The review of such concept altering legislation for three days after generations of existing definitions would not so damage same-sex couples as to necessitate an avoidance of rules meant to ensure full review and discussion prior to any vote. Nonetheless, this Court is reluctantly obliged to rule that that the message of necessity submitted by the Governor was accepted by vote of the Senate, and is NOT within this Court’s province to nullify."

"... Although the disregard for the statute seems evident, the Court feels constrained to not rule on the Governor’s certification of necessities."

"It is ironic that much of the State’s brief passionately spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislative permeates the entire process." 2,3

We have not been able to find any account of Judge Wiggins having creating an injunction to prevent further same-sex marriages until the lawsuit is finally resolved.

If the suit is decided in favor of the plaintiffs, then no further SSM marriages would probably be possible unless an the ruling was delayed until after the legislature had a chance to pass the bill again.

2011-DEC-05: Complaint against Judge Wiggins' ruling filed:

According to Scott Rose, a New York City-​based novelist and freelance writer writing for The New Civil Rights Movement:

"Livingston County Acting Supreme Court Judge Robert B. Wiggins dismissed all but one of the Plaintiffs’ allegations. The one surviving allegation is legally dubious. Judge Wiggins’s written decision is chock full of unjudicial, unprofessional bias and political propaganda. Even if it turns out that he has properly decided on the one surviving allegation, the bias and political propaganda he wrote into his Decision constitutes conduct unbecoming an Acting Supreme Court Judge."

Rose has filed a complaint with the NY Commission on Judicial Conduct to investigate Judge Wiggins for bias in this ruling. He said, in part:

"... Defendant Schneiderman had filed a Motion to Dismiss, as well as a Memorandum of Law in support of that motion. In his Decision, Judge Wiggins said apropos of Schneiderman’s Memorandum of Law that it 'spews sanctimonious verbiage.' The question arises whether an unbiased, impartial judge would in a Decision write that a Defendant’s court document 'spews sanctimonious verbiage.'

An examination of the context of Judge Wiggins’s phrase 'spews sanctimonious verbiage' solidifies an impression that in his Decision, Judge Wiggins included non-​judicial, political propaganda indicative of bias. Where Judge Wiggins wrote that the State’s brief 'spews sanctimonious verbiage,' he was emotionally expressing an opinion regarding the Plaintiffs’ allegation -- (as made in the Plaintiffs’ Verified Complaint) -- of a 'corrupt legislative process' including “the Governor’s violation of the constitutionally mandated three-​day review period before the Legislature votes on a bill by unjustifiably issuing a message of necessity.

Judge Wiggins concluded that Governor Cuomo’s handling of the message of necessity was entirely legal. That is to say, in his Decision, Judge Wiggins ultimately acknowledges that legally, the Plaintiffs’ allegation regarding Cuomo’s use of the message of necessity was without merit. Nonetheless, instead of organizing this section of his Decision around a legal analysis of why the Plaintiffs’ allegation regarding Cuomo’s use of the message of necessity was without merit, Judge Wiggins organized this section of his Decision around chastising Governor Cuomo over his use of the message of necessity.He did so, even though as a matter of law, a Governor’s message of necessity is not subject to judicial review." 4,5

2012-MAY-15: Appeal hearings:

The Fourth Department of the Appellate Division, a state appeals court in Rochester, NY, heard arguments concerning whether the state's open meeting laws were violated during the leadup to the vote in 2011-JUN which legalized SSM in the state. Although senators belonging to a political party can hold closed meetings, there were two visitors/guests at a meeting who were not Republican Senators: Governor Cuomo and Mayor Bloomberg of New York City.

According to lohud.com:

"The question the judges appeared most interested in is whether the law’s political caucus provision that allows for 'guests' to be present covers Cuomo and Bloomberg, who are not registered Republicans like the rest of the Senate majority. Cuomo and Bloomberg also are not members of the Senate, which could be a key factor in the decision. ..."

"The judges noted that members of a Democratic administration hold private meetings with the Republican majority Senate caucus for the purposes of budget briefings. They questioned why a governor would be held to a different standard."

"Those on both sides of the bench acknowledged that there is little precedent on the meaning of the word 'guest'."

"A lawyer for the state said that the group which brought the suit is unhappy it lost the larger battle to prohibit same-sex marriages in New York."

"Rena Lindevaldsen, representing New Yorkers for Constitutional Freedoms, which is based in Spencerport, Monroe County, said the transparency of the political process is at stake." 6

Scott Rose, "Request for the NY Commission on Judicial Conduct to Investigate Judge Wiggins for Bias in his Decision on the Challenge to the Marriage Equality Act," The New Civil Rights Movement, 2011-DEC-05, at: http://thenewcivilrightsmovement.com/